Equivalent citations: AIR 1971 SC 996, (1972) 4 SCC 274

Bench: G Mitter, K Hegde, P J Reddy

The State Bank Of Travancore vs Aravindan Kunju Panicker And Ors. on 19/3/1971
JUDGMENT
K.S. Hegde, J.
1. This appeal by special leave is directed against the decision of a single
Judge of the Kerala High Court in a second appeal. Therein the learned Judge
allowed the appeal of the plaintiffs, reversed the judgment and decree of the
first appellate Court and restored that of the trial Court
2. In Order to decide the points arising for decision in this appeal, it is
necessary to set out in brief the facts of the case. This litigation has a long
history. The property concerned in the suit is 99 cents in extent but it
contains some buildings. It is situate in a municipal town 08 Kottayam taluk. It
appears that the property has now become very valuable This property admittedly
at one time belonged to an Ezhava Marumakkathayam Tharwad. Three junior members
of that Tharwad sold that property to a third party in 1063 M.E. (Mallayalam
Era). Three other junior members of that Tharwad sued for the recovery of that
property in 1074 M.E. after setting aside the alienation which according to the
plaintiffs therein was not valid and binding on the Tharwad. That suit was
decreed and the plain tiffs therein were allowed to recover possession of that
property on their paying the alienee a sum of Rs. 454/−.The decree holders were
unable to pay that sum. They applied to the Court to permit one Krishnan
Krishnan, a relation of theirs to deposit the amount in question into Court and
take delivery of the property. The Court allowed that application. Thereafter
the said Krishnan Krishnan deposited 454/−into Court through the plaintiffs’
lawyer and took delivery of the property in 1082 M.E. through Court. Kuniappi
Velu, a creditor of Krishnan Krishnan filed a suit against him in 1089 M.E.,
obtained a decree and thereafter put up the property in question for sale and
purchased the same in Court auction. He took delivery of that property through
Court in 1102 M.E. The said Kuniappi Velu sold the property to one Punnen Thomas
very soon after he took delivery of the property. This purchase by Punnen Thomas
was for and on behalf of one Kochu Thommen Kuruvilla. Punnen Thomas executed a
release deed in favour of Kuruvilla in 1121 M.E. On 8−5−1128 Kuruvilla mortgaged
the suit property for Rs 37.000/−in favour of Travancore Forward Bank Ltd.,
Kottayam. As Kuruvilla did not discharge that debt, the bank obtained a mortgage
decree against him. The Travancore Forward Bank Ltd. . was amalgamated with the
State Bank of Travancore (the appellant herein). Thereafter the State Bank of
Travancore was impleaded as an additional plaintiff in that suit On 12−8−1121
M.E. four members of the Ezhava Marumakkathayam Tharwad referred to earlier
instituted the suit from which this appeal arises seeking possession of the suit
property. The first plaintiff (since deceased) claimed to be the Karanavan of
the Tharwad. Their case is that Krishnan Krishnan who deposited Rs. 454/−into
Court and took delivery of the suit property was only an agent of the Tharwad.
He had no tight in that property. He was entitled to keep possession of the
property until the amount deposited by him into Court was repaid to him. It was
further alleged in the plaint that there was an agreement between Krishnan
Krishnan and the plaintiffs In the suit wherein the deposit was made that
Krishnan Krishnan should redeliver the property to the Tharwad on receiving the
amount in question. The plaintiffs in the present case offered to pay to
Krishnan Krishnan’s representative the sum of Rs. 454/−.

3. The agreement alleged to have been entered into between the plaintiffs in
the first suit and Krishnan Krishnan has neither been accepted by the first
appellate Court nor was It relied upon by the High Court There Is no reliable
evidence in support of that agreement

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 4. The trial Court came to the conclusion that Krishnan Krishnan in law can
only be an agent of the plaintiffs in the first suit He can only have a hen over
the suit property and the subsequent purchasers of his right can have no better
title than what Krishnan Krishnan had. That Court also repelled the contention
of the contesting defendants that Krishnan Krishnan or those who acquired his
rights had perfected their title to the suit property by adverse possession. It
held that the possession of Krishnan Krishnan was permissive and the same could
not be considered as being adverse to the real owners. It further held that the
property in question was always in the possession of the tenants and it was
never in the possession of Krishnan Krishnan or those who purchased his rights.
It also held that there is no evidence to show that either Krishnan Krishnan or
the sub−sequent purchasers of the suit property ever to the knowledge of the
true owners asserted hostile title to the property. The trial Court also did not
accept the contention of the defendants that the plaintiffs have not succeeded
in proving that the Tharwad which was the original owner of the suit property is
joint or original first plaintiff was Karanavan of that Tharwad when the suit
was instituted.
5. In appeal the learned appellate Judge came to the conclusion that the
plaintiffs had not established that the Tharwad in question is undivided nor
have they proved that the original first plaintiff was the Karanavan of the
Tharwad when the suit was instituted. He further came to the conclusion that
Krishnan Krishnan must be held to have acquired an absolute title to the suit
property as the plaintiffs have not succeeded in proving the agreement pleaded
by them. It upheld the contention of the defendants that Krishnan Krishnan and
thereafter his successors in interest had acquired full title to the property by
adverse possession.

6. In second appeal a learned single Judge of the High Court disagreed with
each one of the conclusions reached by the first appellate Court and agreed with
those reached by the trial Court. Dealing with the question whether the Tharwad
in question is an undivided Tharwad, he pointed out that the evidence of the
plaintiffs in that regard stands unrebutted. He also accepted the contention of
the plaintiffs that the first plaintiff was the Karanavan of that Tharwad when
the suit was instituted He further held that on the basis of the material on
record the only conclusion possible is that Krishnan Krishnan took possession of
the suit property as the agent of the plaintiffs in the first suit and as such
his possession was permissive. He agreed with the trial Court that the actual
possession of the property was always with the tenants and the possession of
Krishnan Krishnan and that of his successors in interest has not been shown to
be adverse to that of the true owners. Each one of these findings were
challenged before us.
7. We shall first take up the question whether the plaintiffs Tharwad was
divided or undivided and further whether the original first plain tiff was the
Karanavan of the Tharwad when the suit was instituted. On these questions the
evidence is completely one sided. The plaintiffs have adduced evidence to show
that the Tharwad is undivided and that the original first plaintiff was the
Karana van of the Tharwad. There is no reason to disbelieve that evidence. That
evidence was unrebutted. That apart, a Hindu family is presumed to foe joint
unless the contrary is established. There is no evidence on record to rebut that
presumption. We agree with the learned Judge of the High Court that there was no
basis for the first appellate Court for doubting the fact that the original
first plaintiff was the Karnavan of the Tharwad at the relevant time.
8. Now coming to the question as to the nature of the possession of Krishnas
Krishnan, the High Court has not relied on the agreement plead ed by the
plaintiffs. There is no re liable evidence to support that agreement But the
evidence adduced in this case including unimpeachable documentary evidence
clearly shows that assistance of Krishnan Krishnan (Krishnan Krishnan was the
father of some of the then members of the Tharwad) was sought by the plaintiffs
in that suit to tide over the difficulty in the matter of depositing the
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 required amount into Court As mentioned earlier the amount in question was de
posited into Court through the plain tiffs lawyer and Krishanan Krishnan took
possession of the suit property in execution of the decree in favour of the
plaintiffs in that suit. No sale deed or any other document was executed in
favour of Krishnan Krishnan nor could the plaintiffs in that suit validly
alienate that property as they were only junior members of the family. We agree
with the High Court that as Krishnan Krishnan paid the amount that was payable
by the Tharwad and took possession of the property, he could only have a lien
over the property for the amount advanced by him. Neither Vellu nor Kuruvilla
who purchased the rights of Krishnan Krishnan can in law have greater rights of
that property than what Krishnan Krishnan had. On purchasing the rights of
Krishnan Krishnan they had merely stepped into his shoes.

9. Now coming to the question of adverse possession, there is conclusive

evidence to show that the suit property was at all times in the possession of
the tenants of the Tharwad referred to earlier. Krishnan Krishnan, Vellu and
Kuruvilla at best could have only collected the rent. The evidence in this
regard has been discussed in detail by the learned judge of the High Court It is
not necessary to deal with that evidence over again. We accept the conclusion of
the learned judge that the suit property was all along in the possession of the
tenants. Further as Krishnan Krishnan had only a lien over the property for the
amount advanced by him his possession of the suit property which in this case is
symbolical, must be held to be a permissive possession. The possession of Vellu
and Kuruvilla for the same reason must be held to be permissive possession. A
permissive possession cannot be converted into an adverse possession unless it
is proved that the person in possession asserted an adverse title to the
property to the knowledge of true owners for a period of twelve years or more.
There is no evidence to show that either Krishnan Krishnan or Vellu or Kuruvilla
asserted any hostile title to the suit property to the knowledge of the true
owners at any time before the present suit

10. In the result we agree with the conclusions reached by the learned Judge
of the High Court and dismiss this appeal with costs.

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